Law, Justice, and Society: A Sociolegal Introduction

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1 Law, Justice, and Society: A Sociolegal IntroductionChapter 1Law: Its Function and Purpose

2 Law: Its Function and PurposeIn the making of the human world, nothing has been more important than what we call law. Law is the intermediary between human power and human ideas. Law transforms our national power into social power, transforms our self-interest into social interest, and transforms social interest into self-interest.Allott (2001,19)

3 The Importance of Law“Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her lap—let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs;—let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars” (Basler 2007, 6)Abraham Lincoln,1838

4 Law: Its Function and PurposeWhat Is Law?Written body of general rules of conductApplicable to all members of community, society, or cultureEmanate from a governing authorityEnforced by its agents by imposition of penalties for violationsBinds people of a common culture

5 Law: Its Function and PurposeSix Elements of CultureCulture is the totality of learned socially transmitted behaviors, ideas, values, customs, artifacts, and technology of groups of people6 elements are beliefs, values, norms, symbols, technology, and languageWhat are these elements, and how do they relate to law?

6 Law: Its Function and PurposeIdeas about how the world operatesWhat is true and what is falseCan be about tangible phenomena (empirical knowledge)Can be about intangible phenomena (religion, philosophy)Beliefs

7 Law: Its Function and PurposeBeliefs (cont.)Laws are enacted to support deeply held beliefsAs beliefs change, so do the laws which support them changePrescientific AstronomySlavery

8 Law: Its Function and PurposeNormative standards about what is good and bad, correct and incorrect, moral and immoral, normal and deviantMore general and abstract than beliefsAmerican values are transplanted and modified Western European valuesValues

9 Law: Its Function and PurposeValues (cont.)Can be either general or more specificExamples of general, “core”, values:the Golden Rule, justice, equality, liberty, and the sanctity of lifeExamples of more specific values:achievement and success, individualism, progress, self-reliance, and hard work

10 Law: Its Function and PurposeNormsA norm is the action component of a value or a beliefIt patterns social behavior in ways consistent with those values and beliefs

11 Law: Its Function and PurposeNorms (cont.)Moresnorms with serious moral connotationsbecome codified into lawFolkwaysless serious normshabits that many conform to automatically

12 Law: Its Function and PurposeNorms and the LawLaws always reflect core values and mores of cultureWestern core values are generally from Judeo-Christian heritageLaw is a social tool where norms are passed on between generations

13 Law: Its Function and PurposeNorms and the Law (cont.)Positive law Laws that arise from the norms and customs of a given cultureLegal positivism A theory of law that explains law by examining its cultural context and views law as socially constructed, Furthermore; law is considered morally relativeNatural law Hypothesized universal set of moral standardslegal realism all law is morally relative and must be judged according to its cultural contextessential feature of law is its coerciveness, not its moral quality

14 Law: Its Function and PurposeNorms and the Law (cont.)Natural law (cont.) Philosophize about the law as it ought to be

15 Law: Its Function and PurposeSymbolsConcrete physical signs that signify abstractionsCan be specificlittle man or woman on a restroom doorOr can be suffused with broad, emotional meaninga flag

16 Law: Its Function and PurposeSymbols and the LawSymbolism surrounding the law helps those who observe it feel its majestySymbolism helps legitimize and sustain the lawExamples:imposing courtroomrobed and bewigged judgeselevated stagesold-fashioned terminology

17 Law: Its Function and PurposeSymbols and the Law (cont.)Discouraged behaviorEncouraged behaviorValues and beliefsFolkways/mores/normsLAW

18 Law: Its Function and PurposeTechnologyThe totality of the knowledge and techniques a people employ to create the material objects of their sustenance and comfortTechnology employed by a culture create different physical, social, and psychological environmentsEvolved into a risk society that is preoccupied with the future

19 Law: Its Function and PurposeThree Ways Technology Affects law (Vago 1991)1. Supplies technical inventions and refinements that change ways criminal investigations are made and the law is applied2. Advances in the media may change the intellectual climate in which the legal process is executed3. Presents the law with new conditions with which it must wrestle

20 Law: Its Function and PurposeLanguageA vast repository of information about culture: the storehouse of cultureProvides the ability to formulate, articulate, and understand rules of conduct, i.e., the law.Written language allows everyone to be warned in advance of what is forbidden and what is not

22 Law: Its Function and PurposeThe Code of HammurabiKing of Babylonia ( BCE)set of judgments originally pronounced to solve particular casesAdministration of law in the hands of the priesthoodScribes kept records of decided casesElders acted as official witnesses at trialAny citizen could appeal decision directly to king

23 Law: Its Function and PurposeCode of Hammurabi (cont.)Governed sexual behaviors, property rights, and acts of violenceIntroduced the concept of lex talionisUsed third parties to settle disputesDemanded humane treatment of those accused of wrongdoing

24 Law: Its Function and NaturePlato ( BCE)Theory of Formsforms are immaterial essences independent of our knowledge about them; they are the ultimate realities of existencewe can only perceive them imperfectlylaw is one of these formslawmakers must gain an understanding of the form of law to create best resemblance of it

25 Law: Its Function and PurposePlato (cont.)Law is necessary to regulate self-interestWhen men have done and suffered injustice and have had experience of both, not being able to avoid the one and obtain the other, they think that they had better agree among themselves to have neither, hence there arise laws and mutual covenants; and that which is ordained by law is termed by them lawful and just (Plato 1952, 311).

26 Law: Its Function and PurposePlato (cont.)The state is virtuousOnly through the state can citizenry behavior be regulatedFavored “philosopher king”

27 Law: Its Function and PurposeAristotle ( BCE)State exists so that people can not only live together, but live wellFavored egalitarian system where rulers are subservient to the lawLegislatures must provide for the greatest happiness of the greatest number of citizens

28 Law: Its Function and PurposeAristotle (cont.)Equates law with justiceThe goal of law was to ensure that persons receive what they justly deserve by their actionsSince the lawless man was seen to be unjust and the lawful man just, evidently all lawful acts are in a sense just acts; for the acts laid down by the legislative art are lawful, and each of these we say is just (Aristotle 1952, 377).

29 Law: Its Function and PurposeSt. Thomas Aquinas ( )Personal relations are governed by utilitarian principle of the common goodPrimary objective of the law is to bind one to act to achieve the common good for all societyDistinguished between natural and positivist law, and related natural law to the divine.Coercion must exist as a tool to achieve the common good

30 Law: Its Function and PurposeLaw is the rule and measure of acts, whereby man is induced to act or is restrained from acting; for lex (law) is derived from ligare (to bind) because it binds one to act (Aquinas 1952, 205).

31 Law: Its Function and PurposeThomas Hobbes ( ; Leviathan)Humans are viscous and only concerned with their own interestsPrior to civilized communities, life was a “war of all against all” and was “nasty, brutish, and short.”Due to this state, humans created a social contract with one another

32 Law: Its Function and PurposeThomas Hobbes (cont.)preferred a strong sovereign capable of enforcing the social contractdisavowed any notion of natural lawthe ultimate end of government was security; the end justified the meansWhen a Commonwealth is once settled, then are there actually law, and not before; as being then the commands of the Commonwealth; and therefore also civil laws; for it is the sovereign power that obliges men to obey (Hobbes 1952, 131).

33 Law: Its Function and PurposeJohn Locke ( ; Second Treatise on Government)Held a more optimistic view of human nature than HobbesCredited with providing the justification forGlorious (English) Revolution of 1688American Revolution of 1776French Revolution of 1789 (Lavine 1989)

34 Law: Its Function and PurposeJohn Locke (cont.)Individuals are born as “blank slates”Pre-civilized society was inferior to an organized political state only because it lacks lawIt was governed by natural laws based on moral obligationsThis society was harmoniousWhy would such a society move to a political system with law to govern it?

35 Law: Its Function and PurposeMen being, as has been said, by nature all free, equal, and independent, no one can be put out of this estate and subjected to the political power of another without his own consent. The only way whereby any one divests himself of his natural liberty and puts on the bonds of civil society is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties and a greater security against any that are not of it. This any number of men may do, because it injures not them freedom of the rest; they are left as they were in the liberty of the state of nature (Locke 1952, 54).

36 Law: Its Function and PurposeJohn Locke (cont.)Government exists to protect individual freedomsIf a government does not maintain its part of the social contract, the governed can break it

38 Law: Its Function and PurposeMax Weber ( ; Economy and Society)law was different from other rules in three ways:1. Regardless whether persons want to obey the law they face external pressures and threats to do so2. The external pressures and threats involve the use of coercion and force3. These external pressures and threats are carried out by agents of the state

39 Law: Its Function and PurposeMax Weber (cont.)Not concerned with natural lawFocused on the rationalization of the worldhow world changed from feudal system to capitalism.

40 Law: Its Function and PurposeMax Weber (cont.)Four-fold typology of legal decision making based on rationality, irrationality and formal and substantive procedures

41 Law: Its Function and PurposeWeber’s Four-Fold Typology of Legal Decision MakingSubstantive IrrationalityLeast rationalBased on case-by-case political, religious, or emotional reactionsNon-legally trained person acting without a set of legal principlesExample: King Solomon in the Bible

42 Law: Its Function and PurposeWeber’s Four-Fold Typology of Legal Decision MakingFormal IrrationalityBased on religious dogma, magic, oath swearing, and trial by combat or ordealFormal rules, but they are not based on reason or logicExample: settling cases in some Islamic countries

43 Law: Its Function and PurposeWeber’s Four-Fold Typology of Legal Decision MakingSubstantive RationalityGuided by a set of internally consistent principles other than lawDecision-making applied on a case-by-case basis using the logic of some religious, ideological, or bureaucratic sets of rulesExample: Code of Hammurabi

44 Law: Its Function and PurposeWeber’s Four-Fold Typology of Legal Decision MakingFormal RationalityMost rational and idealCombines high degree of independence of legal institutions with a set of general rulesDecision makers are monitored by othersExample: Western legal systems

45 Law: Its Function and PurposeIrrationalRationalSubstantiveDecisions made subjectively by non-legally trained individuals on a case-by case basis.Decisions made on a case-by-case basis guided by logically consistent principles (bureaucratic rules, religion, ideology) other than the law.FormalDecisions based on formal rules, but rules not based on logic (superstition, magic, ordeals, oath swearing, etc.).Decisions based on formal logical rules and principles made by legally trained persons bound by those rules, but with a high degree of independence.

46 Law: Its Function and PurposeÉmile Durkheim ( ; Division of Labor in Society)Interested in the relationship between types of law and types of societyAll societies exist on the basis of a common moral order, as opposed to a rational social-contractExamined the effects of the division of labor on social solidaritythe degree to which people felt an emotional sense of belonging to others and to a group

47 Law: Its Function and PurposeDurkheim’s Two Types of Social SolidarityMechanical solidarityrelations based on primary group interactionsstrong emotional bondssimple and limited division of laborstrong behavioral normssolidarity grows out of sameness, resulting in a collective conscience

48 Law: Its Function and PurposeDurkheim’s Two Types of Social SolidarityOrganic solidaritybroad division of labor (result of industrial revolution and factory system)characterized by secondary relationshipsgoal oriented interactions; results in weakened collective consciousgrows out of diversity and a sense of social interdependence

49 Law: Its Function and PurposeOrganic Solidarity and the LawMore complex societies and interactions that are at the secondary level and rely more on economic needs necessitate laws to regulate the different kinds of activitiesMechanical solidarity created harsh penalties, or retributive or repressive justiceOrganic solidarity created tolerance among minor rule breakers and more humane punishments, called restitutive justice

50 Law: Its Function and PurposeTwo Opposing Perspectives:Conflict and Consensus

51 Law: Its Function and PurposeConsensus View of SocietyStructured to maintain its stabilityIntegrated network of institutions that function to maintain social orderStability is achieved through cooperation, shared values, and cohesive solidarityConflicts arise, but only temporarily, and can be solved within the framework of shared values as exemplified by a neutral legal system

52 Law: Its Function and PurposeConflict View of SocietyCharacterized by conflict and dissension between groups with sharply different interestsLimited resources mean that conflict is inevitableOrder is maintained purely by coercion

53 Law: Its Function and PurposeIdeal TypesThese perspectives are merely ideals in order to discuss social phenomenaAll societies are characterized both by consensus and by conflictConflict is as necessary as consensus to maintain the viability of a free society

54 Law: Its Function and PurposeThe Consensus PerspectiveAll legal theorists so far discussedLaw is a neutral framework for patching up conflicts between groups who share fundamental valuesIt is both just and necessary in order to control socially harmful behaviorLegal codes express compromises between various interest groups

55 Law: Its Function and PurposeThe Consensus Perspective (cont.)If coercion is used, it is the individual’s fault, not a flaw in the lawLaw is obeyed out of respect, not fearLaw is willingly supported by all good people

56 Law: Its Function and PurposeThe Conflict PerspectiveLaw functions to preserve the power of the most exploitive individualsKarl Marxsociety is composed of two classes: the rulers and the ruledconflicts always settled in favor of ruling classruling class is defined as those who control the means of production

57 Law: Its Function and PurposeThe Conflict Perspective (cont.)Karl Marx (cont.)ruled accept such a social system and such laws because of a false consciousnessrulers can create this false consciousness because they control politics, religion, education, etc.

58 Law: Its Function and PurposeWhat Is Society Like Without Law?Liberty in the most literal sense is the negation of the law for law is restraint, and in the absence of restraint is anarchy. On the other hand, anarchy by destroying restraint would leave liberty the exclusive possession of the strong and unscrupulous…So that however it may be mistaken, the end of the law is not to abolish or restrain, but to preserve and enlarge freedom (Justice Cardozo in Day 1968, 29).